Santana v. Shields

----ooOoo----

Michael V. Shields,
Plaintiff and Appellee,

v.

Maria Cristina Santana,
Defendant and Appellant.
______________________________

Maria Cristina Santana,
Counterclaim Plaintiff
and Counterclaim Appellant,

v.

Michael V. Shields,
Darlene Green, and Kevin Green,
individuals; Juanita Investments,
a limited partnership;
and Parkside Apartments,
a division of Juanita Investments,
Counterclaim Defendants
and Counterclaim Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981723-CA

F I L E D
November 2, 2000
2000 UT App 298
-----

Third District, Murray Department
The Honorable Joseph C. Fratto, Jr.

Attorneys:
Maria Cristina Santana, Salt Lake City, Appellant Pro Se
David N. Mortensen, Provo, for Appellees -----

Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

Appellant raises seven issues on appeal. Appellant's first two arguments are (1) Appellee Shields's complaint was void because he conducted business under an unregistered, assumed name; and (2) the trial court lacked subject matter jurisdiction over his claims pursuant to Utah Code Ann. § 42-2-10 (1999). The name signed on the lease, Parkside Apartments, was an unregistered, assumed name. See Utah Code Ann. § 42-2-5 (1999). This fact did not deprive the trial court of subject matter jurisdiction, nor did it make the complaint a nullity on its face. See Utah Code Ann. § 42-2-10 (1999); Graham v. Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist., 1999 UT App 136,¶¶10,15, 979 P.2d 363, cert. denied, 994 P.2d 1271 (Utah 1999). Instead, section 42-2-10 addresses the capacity to sue, and lack of capacity is an affirmative defense. See Utah R. Civ. P. 8(c), 9(a)(1). Appellant waived this affirmative defense by failing to bring it before the trial court. See Utah R. Civ. P. 12(h); Hal Taylor Assocs. v. Union America, Inc., 657 P.2d 743, 748 (Utah 1982).

Appellant also argues that Appellee should have brought the action in the name of Parkside Apartments, the name signed on the lease. Instead, it was brought in the name of Michael Shields, the principal partner of the limited partnership, Juanita Investments, which owned the complex. Nonetheless, Appellant brought a countersuit against Parkside Apartments, acknowledging it was a division of Juanita Investment, which is registered with the Division of Corporations, and joined Michael Shields and Juanita Investments as well. Cf. Blodgett v. Zions First Nat'l Bank, 752 P.2d 901, 905-06 (Utah Ct. App. 1988) (finding jurisdiction existed when assumed named corporation defendant and individuals who comprised corporation also named as defendants). By bringing a countersuit which joined the parties and not raising capacity before the trial court, Appellant waived this claim.

Appellant next argues that the trial court granted summary judgment without adequate evidence. That judgment, which was based upon a hearing, found "no merit sufficient to withstand judgment for [Appellee] based on any of the affirmative defenses or the one remaining counterclaim . . . ." No transcript of the hearing has been provided to this court, so "the trial court's ruling on the evidence must be presumed correct." Howard v. Howard, 601 P.2d 931, 934 (Utah 1979). Additionally, Appellant is not challenging that portion of the court's judgment which found that she owed back rent and that she was in unlawful detainer of the premises. Based upon the pleadings, the record, and the presumption that the proceedings on summary judgment were correct, we see no basis on which to disturb the summary judgment.

Appellant's fourth argument is that equitable estoppel precluded Appellee from recovering treble damages and attorney fees because Appellee gave "notice of intent to deny Appellant's right to reinstatement" under Utah Code Ann. § 78-36-8.5(2)(a) (1999). Appellee actually posted an owner's bond in the sum of $1,000 on August 14, 1997, which, under section 78-36-8.5(2)(a), allows the renter to remain on the premises if she pays the rent owed as well as any other expenses accrued in the proceedings within three days of the notice of the bond. There is no evidence in the record that Appellant, after being served with the notice of the owner's bond, proposed to pay the rent owed and the other expenses within three days, nor is there evidence that she raised this issue before the trial court. Thus, Appellant's argument fails.

Appellant's fifth argument is that the trial court erred when it failed to nullify the lease under the doctrine of procedural unconscionability since the lease was a standardized form and was signed seven weeks after Appellant moved into the apartment. This issue was not raised before the trial court and, therefore, was not preserved for appeal.(1) See Salt Lake County v. Carlston, 776 P.2d 653, 655 (Utah Ct. App. 1989) (holding that before appellant may advance issue on appeal, record must clearly show that issue was presented to trial court in manner sufficient to obtain ruling thereon). Even if we were to reach this issue, Appellant could not show procedural unconscionability because Appellant, a licensed attorney in the State of Utah, had the opportunity to examine the lease before signing it. See Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 403 (Utah 1998).

Appellant's sixth argument is that the trial court did not distinguish between recoverable and non-recoverable fees. However, this argument lacks merit as Appellant was the only party taking part in litigation and she lost virtually every issue. Thus, apportionment is not applicable in this situation.

Appellant's seventh and final argument is that the attorney fees are exorbitant and unreasonable. "'Whether attorney fees are recoverable in an action is a question of law, which is reviewed for correctness.'" IKON Office Solutions, Inc. v. Crook, 2000 UT App 217,¶9, 6 P.3d 1143 (citation omitted). "Calculation of reasonable attorney fees is in the sound discretion of the trial court . . . and will not be overturned in the absence of a showing of a clear abuse of discretion." Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988). Appellant argues that the amount of attorney fees awarded is erroneous because the trial court did not enter Findings of Fact.(2) "[A]ttorney fees are routinely established by proffer or affidavit, and by evidentiary hearing where necessary." Meadowbrook, LLC v. Flower, 959 P.2d 115, 119 (Utah 1998). Here, the trial court received an affidavit and held a hearing on the appropriate amount of attorney fees. The trial court's ruling in this hearing must be presumed correct because no transcript of the hearing was provided to this court. See Howard v. Howard, 601 P.2d 931, 934 (Utah 1979). Additionally, after an examination of the record and the documents filed in this case, it is apparent that Appellant's litigation tactics caused Appellee to incur many of the attorney fees. Thus, the amount of attorney fees has not been shown to be inappropriate.(3)

Finally, because Appellee was awarded fees below and has prevailed on appeal, Appellee is entitled to attorney fees and costs on appeal. See Meadowbrook, 959 P.2d at 120 ("Because we hold in defendants' favor, defendants are also entitled to reasonable attorney fees incurred in this appeal."); R & R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1081 (Utah 1997) (when party entitled to attorney fees below prevails on appeal, award of attorney fees on appeal is proper). Accordingly, we remand to the trial court to determine the amount of attorney fees reasonably incurred on appeal.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Appellant states that this issue was preserved because she filed an "Objection to Plaintiff's Proposed Judgment on Action for Unpaid Rent, Unlawful Detainer and Affidavits of John Magnum and Michael Shields" and an "Affidavit Supporting Defendant's Objection to Plaintiff's Proposed Judgment" setting forth specific material facts supporting Appellant's arguments that Appellee did not strictly comply with the statute and that his action attempting to deprive Appellant of her rights under the statute gave rise to the defense of equitable estoppel as to damages. She then cites to 100 pages of record. However, her claim of preservation goes to the equitable estoppel argument, but not in any way to the procedural unconscionability argument.

2. Appellant does not argue that the attorney fees clause in the lease is deficient. Thus, it is undisputed that, as the losing party, Appellant is liable for Appellee's attorney fees.

3. Appellant never addresses why the attorney fees are excessive. Thus, this issue could also be dismissed on the basis of inadequate briefing. See State v. Thomas, 961 P.2d 299, 304-05 (Utah 1998) (declaring that an issue is inadequately briefed "when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court").